The discussion about how Afghanistan’s legal system should work and its three components – state, customary and Islamic law (sharia) – should relate to each other has been going on ever since 2001, without a clear result. Even the constitution leaves loopholes that are reflected in the legal practice. Currently, the Afghan government works on a draft law that is supposed to regulate customary law. In this contribution to the discussion, Prof. Michael Daxner(*) argues that dreams about a full-scale return to ‘traditional forms of conflict resolution’ are just this: dreams.
Local systems of conflict resolution, customary law and traditional rules are expected to erode, if and when a nation state develops the rule of law. This is a complex and long-lasting process. For the rule of law you need a functioning state with strong institutions and good governance; the judiciary and the legal system as a whole need to become trusted and accepted, otherwise the public will be full of praise for the establishment of formal institutions, but still seek ruling either by traditional instances or from the most likely agent of power, say a warlord or drug baron, when wanting a conflict resolved and a decision enforced. The question is not which system is better or preferable, but which system is believed to deliver results under current circumstances.
After 2001, the new constitution of Afghanistan promised a unified rule of law, challenged only by religious limitations, i.e. the sharia. But the constitution in itself bears the potential of conflicts of identity and of procedures. It does not say, for example, which interpretation of sharia should be valid and authoritative and how basic conflicts between the state law and sharia could be settled intellectual and practically. Since a framework that provides foreseeable results, trust and recognition are indispensable for any rules, it is understandable that many Afghans emotionally and by education would prefer traditional rules and conflict regulation, like the ones laid down in the pashtunwali or other local traditions – particularly in the present situation where the new institutions still do not function properly.
This constellation of legal inconsistencies was known to all who tried to establish a ‘modern’ rule of law all over the country. It was also clear that a central state as is envisaged by the Bonn Conference and the constitution would have more difficulties to meet the standards of traditional rules, stemming from a highly differentiated tribal, ethnic and local history.
Let us be clear that ‘old’ or ‘traditional’ does not mean ‘better’. In many cases, traditional norms only serve to preserve the power and position of illegitimate strongmen, local dictators or holders of undue privileges or, as in the case of pashtunwali, treat women much worse than men. More importantly: many traditional rules have been eroded by thirty years of war and cannot be restored, even if some ideologues claim they would act in favor of such restoration. Ideology, of course, can be supported by the uncertainty about what to do at all – e.g. if a property conflict needs a quick regulation.
The war and the post-war period after 2001 have brought an unequal, however irreversible modernization to Afghanistan. But modernization does not imply that an imposed rule of law would fulfill all hopes and expectations about a just and non-discriminatory legal system. In many cases, traditional ways of conflict resolution do work at the expense of the weaker party (being instrumentalised by local strongmen) – or do not work at all. In other cases, there is a clear advantage of the new state law (media law, fiscal and traffic rules, higher education); and in yet more cases, there is an area of uncertainty and ambiguity between the traditional and new law. Conflicts in this third group tend to be risky for all ordinary people, because they are open for all kinds of ideological influence. It is true that the new institutions are often not yet existing or so recent that they are unable to gain reputation and trust. The old institutions don’t function well, but they are “better than no rules at all”. That’s what many people think.
This situation causes quite a few new conflicts, many on the local level. There is an answer to the problem but as always under difficult circumstances, it is as complex as the situation. The answer is called ‘legal pluralism‘ and means that competing or parallel rules apply at the same time or the same place for different agenda in civil and penal cases.Since legal pluralism de facto already does exist in Afghanistan, the necessary clarity of procedures and the cases and fields where a specific legal system should apply must be deliberated – a good exercise in freedom. It is also important that the ‘subjective’ perception of a legal act should gain ‘objectivity’ for the parties in a case. Legal experts, lawyers, ethnologists, development agents, even the military know a lot about the attempts to introduce legal pluralism. The most difficult aspect is the answer to the question for what cases the new law should apply and for what cases community-level dispute resolution can be used in order to settle conflicts and enforce sanctions.
In former times, say before 1973, the application of customary law had created a certain ‘trust’ in the state – but this was a state that will be never be restored in the form it had existed. The effects of wartime one-sided ‘modernization’ have eroded even the notion of a trustworthy ‘state’. It may be convincing for many, if old forms of local laws could be effectively adapted to new situations, e.g. whenever communication with or access to authorities is important. Even if we could agree that legal pluralism should never touch universal human rights to which the government of Afghanistan has already consented and approved of, then the question is still, where does the new state need a unity of norms and rules, and where could these be given to the time and transition.
A very good rule for the discussion is: unity of law is not a value in itself. For the state and its need for good governance, unity is needed where it interacts with external powers or where undue advantages or discrimination of particular groups should be avoided (privileges for unrecognized elites should not be fostered by law).
Another state, far from Afghanistan, Bolivia in Latin America, is just experiencing the experiment of re-introducing partially traditional law. Many people, poor ones and underprivileged ones mainly, hail the new development because they were disappointed about the state’s inability to deliver justice. Well, indigenous justice works, in a way. For example, thieves at a fair have been arrested and – been burned alive. It’s “traditional”, it’s “effective”, as defenders say, and the government did not react. Does this sound familiar?
I am a strong advocate of decentralization and of legal pluralism. But either rule – the nationwide rule of law and traditional, local regulations – needs democracy in order to become active and applicable. Traditional rule does not replace democracy or human rights; it can – maybe in many defined areas – complement the modern law, without undercutting its effects.
The state-building process in Afghanistan, if there was any systematic one after 2001, has ignored the potentialities in such a deliberation about legal pluralism and the partial re-introduction of traditional or local laws. This has given some politicised groups such as local insurgents, strongmen or clerics, an opportunity to praise traditional law as a weapon against the rule of law by the legitimate state or government; if this kind of pluralism is being discussed, it should be deliberated as a complement to the rule of law. Old times will never come back, and should not. If Afghan ownership is taken seriously, the process of appropriating and testing authentic legal systems should render independent from the opinion of the interveners.
(*) Michael Daxner is a sociologist and researcher on conflict and conflict resolution. His first contact with Afghan law stems from 2003 to 2005 when he worked with the Ministry of Higher Education on university legislation. His special interest is the transformation of law under the influence of foreign intervention.
This article was last updated on 9 Mar 2020